United States Court of Appeals

For the First Circuit

No. 06-2042

KENNETH M. KANSKY,

Plaintiff, Appellant,

v.

COCA-COLA BOTTLING COMPANY OF NEW ENGLAND; 

COCA-COLA ENTERPRISES INC.; COCA-COLA ENTERPRISES LONG-TERM

DISABILITY PLAN, a/k/a CORE LTD BENEFITS; AETNA LIFE INSURANCE

COMPANY,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Douglas P. Woodlock, U.S. District Judge]

Before

 Torruella, Lipez, and Howard,

Circuit Judges.

Bernard A. Kansky, with whom Kansky & Associates was on brief,

for appellant.

Stephen D. Rosenberg, with whom Eric L. Brodie and The

McCormack Firm, LLC, were on brief, for appellees.

June 29, 2007
In conjunction with this appeal, Kansky filed a motion to 1

substitute the pseudonym "John Doe" in court records, pleadings,

and decisions. However, he failed to respond to our January 3,

2007 Show Cause order with an explanation or reason for his filing

of a public appendix that encompasses almost the entire lower court

record. The district court opinion has already been made publicly

available (apparently without objection), and all filings with this

court have used the appellant's real name. Therefore, at this late

stage in the litigation, changing appellant's name on all court

records is not feasible. It is simply too late to impose

confidentiality on the materials involved in this case. Hence the

motion to substitute the pseudonym "John Doe" is denied.

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LIPEZ, Circuit Judge. Kenneth Kansky appeals the

district court's entry of summary judgment against him in his

lawsuit, filed under the Employee Retirement Income Security Act of

1974 ("ERISA"), 29 U.S.C. §§ 1001-1461, challenging a plan

administrator's decision to deny him long-term disability benefits.

We affirm.1

I.

We recount here the undisputed facts briefly, and

subsequently provide further detail as needed. Kansky was

diagnosed with schizoaffective disorder in 1994, and was treated

for that condition continuously by the same physician, Dr.

Vuckovic, beginning in February 2000, extending through the entire

relevant period of his disability. He worked for Coca-Cola

Enterprises from April 21, 2003 to July 7, 2003, but did not

thereafter return to work, claiming that he was totally disabled.
 To be eligible for LTD benefits under this plan, an employee 2

must show that (a) a physician has diagnosed him or her as "totally

disabled" due to a physical or mental condition, and (b) provide

proof that (1) this disability occurred while he or she was insured

and (2) the disability has continued for at least 26 weeks.

Benefits are not available if the disability began "during the

first 12 months of your most recent period of coverage under this

Plan and [was] caused, or contributed to, by a 'pre-existing

condition.'" A condition is pre-existing "if, during the 3 months

before the date [the employee] became covered under this Plan, [the

employee] received diagnosis, treatment or services, or [] took

drugs prescribed or recommended by a physician, for that

condition."

Kansky argues that the pre-existing condition exclusion clause

ought not apply to him because he previously worked for Coca-Cola

for nineteen months between 1995 and 1996; he claims that our

decision in Rucker v. Lee Holding Co., 471 F.3d 6 (1st Cir. 2006),

allows him to combine those nineteen months of employment with the

three months worked in 2003. If such an aggregation were

permitted, Kansky would have worked for Coca-Cola for longer than

twelve months and the pre-existing condition exclusion clause would

not apply. However, the terms of this LTD plan expressly preclude

this sort of aggregation and our decision in Rucker, dealing with

FMLA benefits, does nothing to alter or contradict the clear terms

of this plan. Thus, Kansky's prior employment is irrelevant and

the pre-existing condition exclusion clause applies to him. 

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On January 8, 2004, Kansky filed for benefits under Coca-Cola's

long term disability ("LTD") plan, which is administered by Aetna.2

Kansky's initial application for benefits and the

supporting medical records indicated that his disability was caused

by his schizoaffective disorder. After Aetna denied his claim

under the pre-existing condition exclusion clause, Kansky

unsuccessfully appealed. He appealed again in August 2004 and

argued, apparently for the first time, that his disability was

caused by chronic fatigue syndrome ("CFS"). In support of this

claim, Kansky submitted a letter from Dr. David Bell, which
 Aetna explained its decision, after providing lengthy 3

quotations from the reports issued by its reviewing physicians, as

follows:

Since the records we have reviewed support that Mr.

Kansky received treatment and took drugs for

schizoaffective disorder during the pre-existing

condition exclusionary period, April 1, 2003 through June

30, 2003, and that his other conditions have not been

established to result in a level of impairment that he

would have been precluded from performing the material

duties of his own occupation as of January 6, 2004, the

denial of his LTD benefits due to the pre-existing

condition is upheld.

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indicated that Kansky's then-current symptoms (in July 2004) were

the result of CFS. Dr. Bell did not opine that CFS was the cause

of Kansky's disability in July 2003. Aetna submitted the entire

file, including this new letter, to a physician and a psychiatrist,

and, based on their assessments, denied the claim a third time.3

Kansky responded with a second letter from Dr. Bell, reiterating

the CFS diagnosis. In early 2005, Aetna issued a final denial of

the claim. 

Kansky filed this suit, seeking review of Aetna's denial

of benefits, as well as sanctions against defendants for an alleged

failure to produce requested documents. The district court's

opinion, Kansky v. Coca-Cola Bottling Co., et al., 2006 WL 1167781

(D. Mass. May 1, 2006), reviews the facts of this case and

evaluates Kansky's challenge to Aetna's decision with admirable

care. The court concluded that Aetna's decision "was reasoned and

supported by substantial evidence." This appeal ensued.

II.
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A. Standard of Review

Our review of the district court's entry of summary

judgment is de novo. Cook v. Liberty Life Assur. Co., 320 F.3d 11,

18 (1st Cir. 2003). The district court, following clear First

Circuit precedent, reviewed Aetna's benefits determinations under

an arbitrary and capricious standard. See Glista v. Unum Life Ins.

Co., 378 F.3d 113, 125-26 (1st Cir. 2004); Doe v. Travelers Ins.

Co., 167 F.3d 53, 57 (1st Cir. 1999); Doyle v. Paul Revere Life

Ins. Co., 144 F.3d 181, 184 (1st Cir. 1998). However, Kansky

argued before the district court that the standard of review

applicable to Aetna's benefits determination should be de novo

because the insurance company both determines the benefits owed and

pays any benefits after the first $35,000 (which the employer

pays). Kansky cited precedents from other circuits, which apply a

less deferential standard where such a "structural" conflict of

interest exists. See McLeod v. Hartford Life & Acc. Ins. Co., 372

F.3d 618, 623 (3d Cir. 2004). The district court rejected this

argument and, consistent with our current law, applied the

arbitrary and capricious standard.

Since the district court issued its decision in this

case, the appropriate standard of review for ERISA cases involving

structural conflicts of interest has come into question in this

circuit. Specifically, in Denmark v. Liberty Life Assurance Co.,

481 F.3d 16, 19 (1st Cir. 2007), two members of this court
 No circuits apply a pure de novo review standard in 4

structural conflict cases. Of the circuits that apply a less

deferential standard in such cases, five of them apply a "sliding

scale" standard: the level of deference given to the insurance

company's decision is correlated to the severity of the conflict.

See, e.g., Fought v. Unum Life Ins. Co. of Am., 379 F.3d 997, 1004

(10th Cir. 2004); Pinto v. Reliance Standard Life Ins. Co., 214

F.3d 377, 379 (3d Cir. 2000); Vega v. Nat’l Life Ins. Servs., Inc.,

188 F.3d 287, 297 (5th Cir. 1999)(en banc); Woo v. Deluxe Corp.,

144 F.3d 1157, 1161-62 & n.2 (8th Cir. 1998); Doe v. Group Hosp. &

Med. Servs., 3 F.3d 80, 87 (4th Cir. 1993). This sliding scale

approach preserves the arbitrary and capricious framework, but

applies greater scrutiny where the conflict of interest is greater.

One circuit applies a "substantially similar" abuse of discretion

standard. See Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955,

967-68 (9th Cir. 2006)(en banc). Only the Eleventh Circuit applies

a standard similar to the de novo standard; it first evaluates

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expressed their dissatisfaction with our present standard of review

in such cases, and urged this court to reconsider the standard of

review issue in an en banc proceeding. We also noted in Denmark

that the other circuit courts have taken a wide range of approaches

to the standard of review question. Id. at 30-31. There is

presently pending a petition for rehearing en banc in Denmark.

That petition raises the standard of review issue in terms

comparable to those used by Kansky in his appeal here. If we

thought any change in the applicable standard of review (and we are

not intimating in any way that there will necessarily be such a

change) might affect the outcome of this appeal, we would defer a

decision on this appeal until the en banc petition in Denmark was

resolved. However, even under the de novo standard of review

advocated by Kansky, Aetna's benefits determination was amply

supported by the evidence. 

4
whether the insurance company's decision was incorrect, and if it

was, the burden shifts to the claims administrator to demonstrate

that the decision was not affected by a conflict of interest. See

HCA Health Servs., Inc. v. Employers Health Ins. Co., 240 F.3d 982,

993-94 (11th Cir. 2001).

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B. Evidence Supporting the Denial of Benefits

Under Aetna's LTD plan, an employee is ineligible for

benefits if his disability began during the first twelve months of

employment and was "caused, or contributed to, by a 'pre-existing

condition." See supra note 1. The plan defined "pre-existing

conditions" as those for which the employee received "diagnosis,

treatment or services or took drugs prescribed or recommended by a

physician" during the three months prior to the beginning of

coverage under the plan. Id. Aetna denied Kansky's claim for LTD

benefits because it determined that his schizoaffective disorder

caused or contributed to his disability in July 2003, and hence his

schizoaffective disorder was a "pre-existing condition" under the

terms of the plan. That decision was consistent with the

overwhelming weight of the evidence in the administrative record.

First, when Kansky initially applied for LTD benefits in

February 2004, his treating physician, Dr. Vuckovic, attributed his

disability to his schizoaffective disorder. Dr. Vuckovic had been

continuously treating Kansky for that condition for four years and

stated in his Attending Physician's Statement (which Kansky

submitted to Aetna in support of his LTD benefits application) that

the disability that began in July 2003 and continued to the present
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was attributable to that condition. This record, offered by Kansky

and created contemporaneously with his application for benefits,

provides strong evidence that Kansky himself, as well as his

treating physician, attributed his disability to his

schizoaffective disorder.

Second, Kansky was hospitalized for a period of ten days

between the onset of his disability and his application for LTD

benefits. The discharge summary from this treatment stated that

his primary diagnosis was atypical schizophrenia. The hospital did

not diagnose Kansky with CFS.

Third, Aetna sent Kansky's medical records to two board

certified physicians for their review and evaluation. Each of them

concluded that his primary diagnosis, schizoaffective disorder, was

the primary cause of his disability. Each credited Dr. Vuckovic's

opinion, based on his long-term treatment and evaluation of Kansky,

and found that the records supported Dr. Vuckovic's impression of

Kansky's medical problems rather than Dr. Bell's.

Kansky argues, however, that his disability was caused

exclusively by his CFS - an independent diagnosis, unrelated to his

history of schizophrenia, and therefore not classifiable as a preexisting condition. In support of his claim, he points to the two

letters from Dr. Bell. The first letter, from July 2004, stated

that Kansky's then-existing symptoms were "very suggestive of

chronic fatigue syndrome," and that CFS "is a more accurate
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clinical diagnosis than his atypical schizophrenia." The letter

also acknowledged, however, that Kansky "would not fulfill the

Centers for Disease Control criteria for chronic fatigue syndrome

as he has a history of atypical schizophrenia." Dr. Bell

recommended no alterations to Kansky's medications or treatment,

and suggested only that he make an effort to "establish a very

regular sleep time and a regular time for arising."

The second letter, dated January 2005, was much shorter

and simply reiterated the findings stated in the July 2004 letter.

It stated that Kansky's "current disability is not due to the

schizoaffective disorder; it is due to chronic fatigue syndrome."

Neither letter purported to provide a diagnosis for Kansky's

disability as of July 2003; both stated only that, at the time Dr.

Bell saw him, Kansky's symptoms could be explained by CFS.

Therefore, even if we were to credit Dr. Bell's letters

and assume that his diagnosis was accurate, he simply did not opine

that Kansky suffered from CFS at the time his disability began.

Furthermore, Dr. Bell never offered an opinion, one way or the

other, as to whether Kansky's well-documented schizoaffective

disorder contributed to his disability. By contrast, every

treating physician who saw Kansky stated that his medical problems

were the result of his schizoaffective disorder, or complications

arising from that disorder. The independent medical professionals

who examined Kansky's records and provided their opinions to Aetna
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agreed with this diagnosis. On this record, there is simply no

doubt that Kansky's schizoaffective disorder, for which he had

received treatment during the three months prior to commencement of

the LTD plan, either caused or contributed to his disability. We

find no error in Aetna's denial of benefits on this basis.

III.

Kansky has raised a number of additional points in his

appeal. We address them briefly.

A. Denial of Motion to Alter or Amend Judgment 

In the district court, Kansky filed a motion to alter or

amend the judgment, on numerous grounds, pursuant to Federal Rule

of Civil Procedure 59(e). We review the lower court's denial of

the motion for abuse of discretion. See Palmer v. Champion

Mortgage, 465 F.3d 24, 30 (1st Cir. 2006). Rule 59(e) motions are

granted only where the movant shows a manifest error of law or

newly discovered evidence. Marie v. Allied Home Mortgage Co., 402

F.3d 1, 7 n.2 (1st Cir. 2005) (stating that Rule 59(e) motions are

generally unlikely to succeed because the movant must "clearly

establish a manifest error of law" or provide newly discovered

evidence (quoting Pomerleau v. W. Springfield Pub. Sch., 362 F.3d

143, 146 n.2 (1st Cir. 2004)).
 Drs. Burton and DeFoy were Aetna's reviewing physicians, who 5

examined Kansky's medical records and opined that his disability

was caused, at least in part, by his schizoaffective disorder.

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First, Kansky claimed that the district court erred

because it "relied" on the opinions offered by Aetna's reviewing

physicians, who he claimed were unqualified to provide medical

opinions on his condition. The district court found that Aetna's

reviewing doctors were "certainly qualified to provide their

medical opinions on whether Kansky's pre-existing schizo-affective

disorder caused or contributed to his disability." On appeal,

Kansky only points out that neither of these doctors' CVs mentions

any research specifically focused on CFS. The district court did

not abuse its discretion in ruling that the absence of CFS research

did not render Aetna's reviewing doctors unqualified to give an

opinion on the causes or contributors to Kansky's disability. 

Second, Kansky argued that the court erred in "conducting

its own medical research." This claim is unfounded. The district

court provided a reasonable explanation for its use of a single

medical article, which was not part of the Administrative Record,

for background information. In denying Kansky's Rule 59(e) motion,

the court explained that it had consulted the article because it

"played a significant role" in an earlier district court decision,

which Kansky had urged the court to consider. The court also noted

that the article appeared to be "the basis for the comments of Drs.

Bell, Burton, and DeFoy [in this case] to the effect that Kansky 5
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cannot be diagnosed [with CFS] according to the current research

criteria put out by the Centers for Disease Control." Kansky, 2006

WL 1167781, at *9. There was no abuse of discretion in the court's

use of this article in such a limited way. 

Finally, Kansky also claimed, in his Rule 59(e) motion,

that the court erred in reaching an "independent" medical

diagnosis, which he described as "schizoaffective disorder

'contributing to' his CFS." In reality, the district court found

that Kansky's schizoaffective disorder contributed to his

disability, and made no finding as to whether the schizoaffective

disorder caused or contributed to the CFS or whether CFS

contributed to the disability. The court did not abuse its

discretion with its insistence that it did not make any independent

medical diagnosis. 

B. Request for Sanctions

Kansky claims that the district court erred in denying

his request for sanctions against the defendants for an alleged

"failure" to produce certain documents. The documents in dispute

were produced, although apparently later than Kansky would have

liked. He has admitted that he suffered no prejudice from this

delay. The district court did not abuse its discretion in denying

sanctions. See, e.g., Sullivan v. Raytheon Co., 262 F.3d 41, 52

(1st Cir. 2001).

IV.
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We do not minimize the hardships caused by Kansky's

medical condition. We recognize the physical, emotional, and

financial burdens imposed by that condition. But the entitlement

to long-term disability benefits is controlled by contract language

and legal standards that we must apply as the law requires. Having

done so, we must affirm the thorough and carefully reasoned

decision of the district court.

So ordered.